John F. BELLAMY, Jr., Appellant, v. MASON’S STORES, INC., (RICHMOND), and A. Friedman, Appellees , 508 F.2d 504 ( 1974 )

CRAVEN, Circuit Judge:

John Bellamy sued Mason’s Stores, Inc., and its Richmond area supervisor, A. Friedman, under Title VII of the 1964 Civil Rights Act and 42 U.S.C. § 1985(3) to recover his job and damages. His complaint was that he was fired for his membership in the Ku Klux Klan. The district court dismissed his complaint. 368 F.Supp. 1025 (E.D.Va.1973). The issue on appeal is whether a private employee is protected by federal law from discharge on the ground that he belongs to an obnoxious organization, i. e., whether the right of association is protected against private interference.

We agree with the district court that the complaint states no cause of action under Title VII, 42 U.S.C. § 2000e — 2. That modern statute is directly aimed at discrimination based on the suspect classifications of race, color, national origin, sex, and religion. In his complaint Bellamy characterized the Klan as a patriotic organization. Nonetheless he argues that the Klan is also a religion because its meetings are full of “religious pomp and ceremony.” For the limited purpose of a motion to dismiss, we think Bellamy is bound by his complaint, absent a timely motion to amend. We therefore decline to consider whether ceremony is enough to make the Klan a religion for the purposes of Title VII.

Coverage under 42 U.S.C. § 1985(3) is another matter.¹ The elements of an adequate complaint under that section are delineated by Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). First of all it is clear from Mr. Justice Stewart’s opinion that “the words of the statute fully encompass the conduct of private persons.” 403 U.S. at 96, 91 S.Ct. at 1795. He went on to say that the failure to mention state action as a requisite “can be viewed as an important indication of congressional intent to speak in § 1985(3) of a11 deprivations of ‘equal protection of the laws’ and ‘equal privileges and immunities under the laws,’ whatever their source.” 403 U.S. at 97, 91 S.Ct. at 1796. (Emphasis in original).

To come within the legislation a complaint must allege that the defendants did (1) “conspire . . . ” (2) “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” It must then assert that one or more of the conspirators (3) did, or caused to be done, “any act in furtherance of the object of [the] conspiracy,” whereby another was (4a) “injured in his person or property” or (4b) “deprived of having and exercising any right or privilege of a citizen of the United States.”

Id. at 102-103, 91 S.Ct. at 1798.

Although it is clear that state action is not necessarily an essential ingredient under this statute, nevertheless we think that some state involvement is necessary in this particular application of the statute in order to maintain a cause of action.

As recently as 1965 six members of the Court were committed to the proposition that section 5 of the fourteenth amendment empowers the Congress to enact laws punishing all conspiracies, with or without state action, that interfere with fourteenth amendment rights. United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). But only a minority of the Guest Court thought that the fourteenth amendment per se secured the right to equal access to state facilities as against private invasion — absent some state involvement.

Mr. Justice Brennan, in partial dissent, stated the Court’s view to be that:

[Bjecause there exist no Equal Protection Clause rights against wholly private action, a conspiracy of private persons to interfere with the right to equal utilization of state facilities . is not a conspiracy to interfere with a ‘right . . . secured by the Constitution’ within the meaning of [18 U.S.C.] 241.²

383 U.S. at 776, 86 S.Ct. at 1188.

Section 1985(3) creates civil liability against any persons who conspire to deprive any other person or class of persons of “the equal protection of the laws, or of equal privileges and immunities under the laws.” The language of the statute tracks the language of the fourteenth amendment, and we now know that included within it is a wholly private conspiracy to deny Negro citizens the right of travel and rights based upon the thirteenth amendment.³ Griffin v. Breckenridge, supra. But we think the language of equal protection chosen by the 1871 Congress cannot be interpreted to mean that persons who conspire without involvement of government to deny another person the right of free association are liable under this statute. This is so because the right of association derives from the first amendment — itself framed as a prohibition against the federal government and not against private persons, and because the incorporation doctrine has never been extended by the Supreme Court to apply to private persons.

In Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971), the en banc court held that § 1985(3) reached a private conspiracy, with no state action, to interfere with the plaintiff’s first amendment rights of freedom of assembly and worship. The Eighth Circuit reasoned that Congress had the power to reach this conspiracy under sections 1 and 5 of the fourteenth amendment, and that the first amendment rights of freedom of assembly and worship have long since been incorporated into the fourteenth amendment and applied as against the states. Since Griffin, supra, makes it clear that private conspiracies without state action are within the compass of § 1985(3), the court concluded that the first amendment rights of freedom of assembly and worship are protected as against wholly private action. “Thus, the Eighth Circuit . . . combined the incorporation doctrine of the due process clause, Griffin’s reading of section 1985(3) and Justice Brennan’s Guest concurrence to eliminate the ‘state action’ limitation from the Bill of Rights.” Note, Federal Power to Regulate Private Discrimination: The Revival of the Enforcement Clauses of the Reconstruction Era Amendments, 74 Colum.L.Rev. 449, 516 (1974). It is perfectly true that the first amendment now speaks to the states by way of the fourteenth amendment, but to say that it also speaks to private persons seems to us an innovation that must come from the Congress or the Supreme Court. It is not hard to reconcile what six members of the Court said in Guest — that Congress may punish private conspiracies to violate the fourteenth amendment guarantees — with what the Court held — that if the language of such a statute simply tracks that of the fourteenth amendment and there is no other source of the claimed “right” to be vindicated, it will be held to include the element of state action or at least some minimal state involvement.

For example, if the Congress should today become concerned about the integration of the public schools in Boston it seems reasonably clear that it could constitutionally make it a criminal offense for any person to interfere by force and violence with the attendance of children at public school. It would seem that the Congress could rationally conclude that such a statute would aid and implement the duty of the state under the fourteenth amendment to afford to all school children the equal protection of the laws. But if instead of clearly defining what was prohibited, i. e., interference with school attendance, the Congress merely reenacted § 1985(3), it would seem that an essential element of such an offense would be some involvement of the state — for the reason stated in Guest —that there are no Equal Protection Clause rights against wholly private action. Of course, if the complaint alleged a conspiracy against blacks and invoked the thirteenth amendment, it would be unnecessary to show state involvement. Griffin v. Breckenridge, supra.

Although the result achieved by the Eighth Circuit is an appealing one, we are unable to make the several jumps— without further guidance from the Supreme Court — from statutory language tracking the fourteenth amendment to the amendment itself to incorporation of the first amendment to application of that amendment to private persons, and while on our way jettison state involvement. But see Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971).

Affirmed.

1 . The applicable part of § 1985(3) reads as follows:

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any . person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . .; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

2 . Title 18 U.S.C. § 241 is the closest remaining criminal analogue of 42 U.S.C. § 1985(3). Griffin v. Breckenridge, 403 U.S. at 98, 91 S.Ct. 1790.

3 . Unlike the fourteenth amendment, the thirteenth amendment is phrased positively and not as simply a prohibition against the states.